Here’s the story behind a 40-year-old Supreme Court decision that I always look forward to discussing in my Employment Law and Employment Discrimination courses. I’m not sure that my students share the enthusiasm, but I think it carries some important lessons for us.
Duke Power Company’s hiring and promotion practices
Before the Civil Rights Act of 1964 outlawed racial discrimination, the Duke Power Company of North Carolina had an express policy of not allowing African Americans to work in any department but the one that paid the very lowest wages. When open discrimination became unlawful, Duke Power got more creative. This included requiring a high school diploma and passing scores on two aptitude tests for any applicant who wanted to be considered for higher paying jobs.
Duke Power could not defend the diploma requirement or the tests as accurate measures of one’s ability to perform the work of those better paid positions. However, these new requirements had the effect of excluding Southern blacks who applied for the higher-paying jobs at Duke Power, especially given significant existing educational inequities.
This led to an employment discrimination claim that challenged Duke Power’s hiring policies, and the case went up to the U.S. Supreme Court. In Griggs v. Duke Power Co. (1971), the Court struck down the requirements. Here’s a short piece of Chief Justice Warren Burger’s opinion:
The facts of this case demonstrate the inadequacy of broad and general testing devices as well as the infirmity of using diplomas or degrees as fixed measures of capability. History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the common sense proposition that they are not to become masters of reality.
A crystal ball?
Those unfamiliar with our Supreme Court Justices might read this passage and think that Warren Burger was a wild-eyed radical lefty. He was anything but that: Burger is widely regarded as a solid conservative.
His insights, I believe, were rooted in his own humble roots. Warren Burger did not grow up with a silver spoon. On a court stacked with graduates of elite law schools, he presented a law degree from the William Mitchell College of Law in Minnesota.
In that one paragraph, the Chief Justice smartly anticipated the craziness to come: High-stakes educational testing at multiple levels. The U.S. News & World Report rankings of colleges, universities, and graduate programs. Out-of-control anxieties over college admissions. Employer love affairs with graduates of elite universities. Higher and higher settings of the credential bar to enter professions and obtain opportunities.
Compare and contrast
This decision hardly rendered Justice Burger a liberal in conservative clothing. Nevertheless, it is a sign of how far the political pendulum has swung to the right that he likely would be seen as a moderate on today’s Supreme Court. Indeed, it would be hard to imagine extreme conservative Justices such as Samuel Alito, Antonin Scalia, and Clarence Thomas joining Burger in his Griggs opinion.